Reforming the water adjudication process?

Since this blog is still flying low under the radar, of most parciantes and water experts, it's no surprise that the hokey "poll" (top right of blog) has attracted so few responses. And to be clear, this was an experiment, this was not my personal or professional view (yet) about adjudication. But I've been thinking long and hard about the ajudication process (not as an outcome), and how some parts of it probably work fine (hydrographic survey, if it is recent, for example) and how other aspects are more problematic (legalese notices from OSE). So this is a first stab at thinking about possible solutions, reforms, or ideas. If you have your own, I would encourage anyone (!) reading this to post them under comments or to contact me personally. You can also read the official version, from the Administrative Office of the NM Supreme Court's perspective, of how reforms to adjudication could take place here.

1. Simplify the language of notice. Since all fields, professions, and people "speak in tongues" - make the first notices, such as offers of judgement (OOJ), much clearer. Anybody who has been adjudicated, or in the process right now, knows how complex legal language can be - it's like reading code, where only a limited number of people understand the sub-text. You have to admire the kind of language that can produce a document known as a "consent order," a lovely if commonly-used paradoxical convention. This was also a point made in a recent professional report out of the UNM Water Resources Program by L. Kryder (get the document in .pdf format here, it will take a while!). You can see a recent example, put out by the Colorado water courts, here (pdf) that simplifies some of the language for people undergoing adjudication (28pp).

2. Aggregate pre-adjudications by sub-basin, not just by posting individual notices. Please note that I am not arguing for bulk focus groups on their water rights. But set public meetings by basin, or better yet, sub-basin and irrigation ditches where everyone can get a chance to discuss their water rights, historical use, beneficial use (purposes), whether the survey is accurate etc in a public setting. Adjudication by mail, phone, and e-mail is problematic even if it is more practial and affordable. Yes, it's easier to 'divide and conquer' at an administrative level, if everyone is treated separately, but that's also the perception by irrigators (that they are being cleaved off, and put into adversarial positions). And effective water governance is best served by both efficiency and transparent equity, and if irrigators are slighted on either front (as commonly perceived and stated) then their willingness to help in governance is diminished. In a worst case scenario, this kind of live group adjudication (or pre-adjudication format) would facilitate the truly conflict-laden cases in parts of the state. There are, of course, many examples of this kind of effort already. But many have been done without a strict tie to the OSE and are done by good-minded educators or personnel at UNM, NMSU (etc...).

3. Allow default judgment study groups, by sub-basin. Here, what I am suggesting is that where large numbers of "default judgments" are handed out by OSE, especially when it's a zero-water right default, allow other members who do have rights to ascertain the validity of these claims. It is of course possible that forfeiture is the right course, if parciantes (or naive new owners) have not been irrigating for 5+ years and have been notified. But any severance of water rights along a ditch affects the entire ditch including any remaining irrigators. I discussed this in a previous post, and how attorneys for acequia organizations are largely unable (or discouraged from trying) to represent individuals not formally on the acequia membership rolls. Even a ball-park calculation of water rights severance from the ditch should be possible, to figure out how much of the canal's hydraulic head will be affected if the cumulative (default) rights are no longer allowed to enter the canal in the first place. Zero rights default judgments are, indeed, the equivalent to the 19th and early 20th century partition suits that broke apart the old Spanish and Mexican-era land grants. So these concerns are both empirically and historically valid.

4. Provide for statute-specific expertise, or at least background in water law by district judges = Create real water courts in New Mexico. In a previous post, I discussed how most states do not require Judges presiding in water rights adjudications to have a background in water law. And while I do not discount the informal networks of judges across state lines, or within a state, for communiation, it remains problematic when those same Judges must then appoint Special Masters (NM) or "Water Referees" (CO) to conduct some of the court's administrative business. So a month-long "workshop" would be a useful start, and the real challenge here would be the work-load of most judges - they'd have to clear the docket before engaging in this kind of educational work or training - by no means a small feat. This would, however, seem to be more pressing than a New Mexico Spaceport, and yet the state has dumped tens of millions of dollars into the latter enterprise. What's more pressing, actual needed water (adjudication) or flying crazy millionaires into space? Too late - the military-industrial complex takes priority in this state. Just look at the list of partners if you think this is some great conspiracy. But given the age of some of the hydrographic surveys undertaken by the OSE, this needs to happen, before all of this previous work is irrelevant or in need of constant updating.

These are just the first set of ideas, and certainly ones that have been expressed before (officially or unofficially) by others, and I look forward to hearing other suggestions, corrections, and counters based on the reality of the situation. - epp